1208 OF 2008 ANDM.P. NO. 1 OF 20081. The Union of India v. The Masjid-E-Aalishn@ Military Mosquerep. By its Secretar

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 27.04.2009CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE V.DHANAPALANW.A. NO. 1208 OF 2008ANDM.P. NO. 1 OF 20081. The Union of India rep. by its Under Secretary to Government Ministry of Defence New Delhi.2. The Defence Estate Officer Madras Circle No.305, Anna Salai Chennai 600 018.3. The Station Commandant HQ ATNKK & G Area (Q) Station Headquarters Fort St. George Chennai 600 009.4. The Cantonment Board rep. by its Executive Officer St. Thomas Mount Chennai 600 016.5. The Garrison Engineer (Projects) St. Thomas Mount Barrack No.2, Military Camp Pallavaram, Chennai 600 043... Appellants / Respondents- Vs -The Masjid-E-Aalishn@ Military Mosquerep. By its SecretaryJanab Shaikh Liaquat AliMunro LinesSt. Thomas MountChennai 600 016... Respondent https://hcservices.ecourts.gov.in/hcservices/ Appeal filed against the order dated 21st April, 2008, passed bylearned Single Judge in W.P No.12149 of 1998. Writ Petition 12149 of1998 filed under Article 226 of the constitution of India to issue aWrit of Mandamus directing the respondent from any manner whatsoeverinterferring with the petitioner mosque land situated inT.S.No.1449/1 and the right to construct the compoung wall.For Appellant: Mr. Ravindran, ASG for Mr.S.UdayakumarFor Respondents: Mr. Habibulla Basha, SC, for Mr.K.Ilias AliJUDGMENTS.J.MUKHOPADHAYA, J.Masjid-E-Aalishn @ Military mosque, petitioner-respondent herein,preferred the writ petition for direction on respondents from in anymanner whatsoever interfering with the petitioner's mosque landsituate in T.S. No.s1449/1 and the right to construct compound wall.The writ petition having allowed forbearing the respondent,Cantonment Board and others from interfering with the petitioner'sland, Union of India preferred the appeal against the order dated 21stApril, 2008.Before the writ court, the petitioner -respondent took plea thatthe property is declared a wakf property as per Wakf Act and,therefore, the same cannot be treated as a defence land. The defenceauthorities have attempted to interfere with the possession of themosque, which is not permissible.2. The case of the appellant was that the learned single Judge,without looking into the relevant facts, particularly the questionrelating to right and title, which cannot be determined under Article226, has passed the injunction order in the manner as was sought for.3. On 20th Jan., 2009, when the case was taken up, learnedcounsel appearing on behalf of the mosque and the counsel for theCantonment Board accepted that the mosque is within the militarycantonment and used since long and army people used to perform nawarand now civilans have also been allowed to enter and offer nawaz inthe mosque. Taking into consideration the religious sentiments, theCourt allowed the parties to settle the dispute, if possible,amicably. Parties were also allowed to file affidavit.4. Learned senior counsel appearing on behalf of the respondent-mosque, relying on the sketch produced by the cantonment boardsubmitted that a road in between the army quarters, which goesthrough East to West could be extended even upto the mosque premises,i.e., in front side of the mosque and they be allowed to construct aboundary wall surrounding the rest of the portion.An affidavit has been filed by the appellant giving all thedetails taking specific plea that the mosque is situate in the https://hcservices.ecourts.gov.in/hcservices/ defence land classified as A-1 defence land under the management ofthe local military authorities. The maintenance of the mosquepremises lies within the regimental committee of Officers TrainingAcademy and the boundary wall upto a height of three feet, ifrequierd, to be constructed and maintained by them, i.e., localmilitary authorities. This has not been disputed by the respondentmosque or their counsel. In fact, learned senior counsel for therespondent mosque accepted that they agree for construction of threefeet height boundary wall by the regimental committee of OfficersTraining Academy, but it was submitted that the main gate, whichgenerally opens at 6.00 a.m., should be allowed to be opened at 4.30a.m., so that the Muslim community may offer nawaz in the earlymorning at 5.00 a.m.5. We have heard the learned senior counsel appearing on behalfof the cantonment board and the learned senior appearing for theUnion of India and the respondent-mosque and also perused the record.In view of the fact that the land in question is classified as A-1defence land and the management is under the local militaryauthorities and that the maintenance of the mosque premises lies withth regimental committee of the Officers Training Academy and theappellant has agreed to construct a boundary wall upto a height ofthree feet, if so required and that the aforesaid fact has beenaccepted by the learned counsel for the mosque, we are of the viewthat in public interest, in the interest of the military and Muslimcommunity in general, the following directions will suffice:-1) The appellant, including the competent authority of thecantonment board/Local Military Authority is allowed six months timeto construct a boundary wall, minimum three feet high, around themosque. It will be open to the cantonment board/Local MilitaryAuthority to construct a pucca road in front of the mosque byextending the existing road from East to West.2) The cantonment board/Local Military Authority and itscompetent authority will maintain the boundary wall, premises of themosque; but so far as the mosque is concerned, the management willmaintain the mosque.3) The cantonment board/Local Military Authority and itsauthorities should open one of the gate at 4.30 a.m., everyday, forMuslim community (followers of Islam) to offer nawaz at 5.00 a.m.The front gate of the mosque should be closed by 9.00 p.m., everyday,except during the period of Ramzan when it should be kept upen upto10.30 p.m.4) The respondent mosque, its management, its followers, whooffer nawaz within the mosque are prohibited from taking any vehicleor other carrier inside the premises of the mosque without the priorpermission of the cantonment board/Local Military Authorities and incase of disabled persons, the competent authority of the cantonmentboard/Local Military Authority may provide wheel chairs to carrydisabled persons inside the mosque. https://hcservices.ecourts.gov.in/hcservices/ 5) The order is passed in the interest of Muslim community, butin case of emergency, if any direction is given by superior authorityof Indian Army or Union of India, it will be open to the cantonmentboard to make appropriate changes as per the emergent situation and,thereafter, inform the matter to the court, if any objection israised by any party. Further, we make it clear that the managementof the mosque will co-operate with the appellant in case of emergencyneed within the mosque as the land belongs to the Army and forsecurity and defence of the country.6) The relevant portion of the key plan/map showing the mosquewithin the area, as produced by the appellant-cantonment board isannexed as 'Annexure – A'.6. The order of learned single Judge dated 21st April, 2008, ismodified to the extent above. The writ appeal stands disposed of.But there shall be no order as to costs. Consequently, connectedmiscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar GLNTo1. The Under Secretary to Government Ministry of Defence Government of India New Delhi.2. The Defence Estate Officer Madras Circle No.305, Anna Salai Chennai 600 018.3. The Station Commandant HQ ATNKK & G Area (Q) Station Headquarters Fort St. George Chennai 600 009.4. The Executive Officer Cantonment Board St. Thomas Mount Chennai 600 016. https://hcservices.ecourts.gov.in/hcservices/

5. The Garrison Engineer (Projects) St. Thomas Mount Barrack No.2, Military Camp Pallavaram, Chennai 600 043.1 cc To Mr.S.Udayakumar, Advocate, SR.185601 cc To Mr.K.Ilias Ali, Advocate, SR.18381 W.A. NO. 1208 OF 2008RB(CO)SRA(22/5/2009)